NSL provision in PATRIOT Act struck down by federal court

A federal court judge issued a decision today striking down the National …

The National Security Letter (NSL) provision of the PATRIOT Act was struck down today by federal court judge Victor Marrero. The controversial NSL provision has allowed the FBI to secretly demand access to records held by organizations like libraries and Internet service providers. National Security Letters, which can be used without probable cause or judicial oversight, also impose "gag" restrictions on recipients, forbidding them from disclosing that they have received the letter.

Judge Marrero originally struck down the NSL provision in 2004, when an Internet service provider challenged the constitutionality of the NSL non-disclosure requirements. At the time, Marrero determined that the NSL provision of the PATRIOT Act violated the First and Fourth Amendments and also pointed out that the associated gag orders make it difficult, if not impossible, for recipients to consult legal counsel without fear of punishment. When the government appealed the ruling, the Second Circuit Court of Appeals acknowledged that the NSL provision was probably unconstitutional but returned the case back to Marrero for a second analysis after Congress altered and renewed the PATRIOT Act. Now that Marrero has reviewed the revised PATRIOT Act, he has determined that the NSL provision is still unconstitutional.

Judge Marrero's decision is a profound meditation on the necessity of the Separation of Powers doctrine and the important role that the judiciary plays in protecting civil liberties. Marrero writes about the potential cost of allowing the tradition of judicial oversight to be undermined by national security legislation. "The past is long, and so is the future we want to protect," writes Marrero. "But too often memory is short. The pages of this nation's jurisprudence cry out with compelling instances illustrating that, called upon to adjudicate claims of extraordinary assertions of executive or legislative or even state power, such as by the high degree of deference to the executive that the Government here contends [the NSL provision of the PATRIOT Act] demands of the courts, when the judiciary lowers its guard on the Constitution, it opens the door to far-reaching invasions of liberty."

Marrero notes that the effects of the 9/11 attack are still felt and "acknowledged by this Court, which sits just a few blocks from where the World Trade Center towers fell. The Court is also mindful of the executive's need to meet new threats to national security with new and ever more effective means of detecting and stopping those perils." Although Marrero recognizes the importance of preserving national security, he asserts in his decision that "The Constitution was designed so that the dangers of any given moment would never suffice as justification for discarding fundamental individual liberties or circumscribing the judiciary's unique role under our governmental system in protecting those liberties and upholding the rule of law."

Although this ruling is unsurprising in light of Marrero's earlier evaluation of the PATRIOT Act, it represents a significant blow to the Administration's efforts to expand the federal government's investigatory power beyond the scope of judicial oversight. Considering the FBI's long record of serious misconduct and intelligence violations, it is apparent that there is a clear need for broader judicial oversight. If the National Security Letter provision of the PATRIOT Act is finally eliminated or altered to adhere to the requirements established by the Constitution, it will be a considerable victory for American civil liberties.